In tenants of the whole land. When once the tenant is summoned into court, either upon a writ of right patent or a writ of right close, the same exceptions and pleadings in abatement or in bar, and the same defence upon the merits, equally applies in a suit upon the one as the other. Nontenure, joint tenancy, sole tenancy, and several tenancy, are good pleas in abatement, wherever they apply to any parcel of the land demanded of any particular tenant or tenants. Bracton, speaking on this subject, says, "tunc demum videndum an tenens totam rem teneat quam petitur, cum certa res debeat in judicium deduci, vel si ejus partem, tunc quotam, vel si omnino nihil, et similiter si res petita pertineat ad jurisdictionem judicantis; et ideo petitur visus rei petitæ, quia ex hoc competere poterit exceptio tenenti, ne sit actio inanis cum tenente, cum rem restituere non possit vel totam secundum quod petitur." Bract. lib. 5. ch.7. fol. 376. And he again treats more fully on the subject in the book, de Exceptionibus, "sunt etiam quaedam quæ visum sequuntur et de quibus certificari poterit tenens antiquam petens ei visum fecerit ; et VOE. II. certa res in judicium deducatur, "Item cadit breve, si tenens minus teneat, quam petens Rr 1817. Liter V. Green. 1817. Liter V. Green. ders, that the writ may abate as to one and remain as to the other, not because they may be joined in the same action, but because the suit against them is considered as several actions, (diversæ actiones.) In a subsequent place, the same subject is again mentioned, "Cum autem tenens visum habuerit, vel quod tantundem valet, scire poterit utrum petenti respondere teneatur, et ad breve secum vel non teneatur secundum quod tenuerit totam rem nomine proprio, vel alieno, vel nihil inde tenuerit, vel non nisi ejus partem; quia si totam non tenuerit, amittere non potest quod non habet, et ita cadit breve,sed non actio,nisi ita sit quod petens ostendere possit quod tenens teneat in dominico et in servitio, nisi tenens docere possit contrarium, quod nec in dominico nec in servitio, &c. &c. In hæc quidem actione per breve de recto sicut in qua libet alia actione per quam petitur res corporalis designare oportet petentem quae et qualis sit res quae petitur, ut si sit res immobilis sicut tenementum designare oportet qualitatem et quantitatem, &c. Item utrum tota petatur an ejus pars, et ne plus petatur a petente quam tenens teneat." Bracton, lib. 5. ch. 27., fol. 431., b. 432., a. Vide also, Id. p. 433., b. Fleta, lib. 5., ch. 5., s. 4., asserts the same doctrine, "Item continetur in brevi qui terram illam tenet, ad quod excipi poterit quod totum non tenet sed alius talis These que tenet inde tantum." tations have been the more largely made from these venerable writers, with a view to show how deeply and early these doctrines are to be found in the rudiments of the common law. It has been very justly observed by Booth (ch. 11. p. 31.) that in real actions may be pleaded in abatement of the writ, joint tenancy, sole tenancy, and several tenancy. And although it is said that in a writ of nuper obiit, in an assize, or in any other action where no land certain is demanded, several tenancy is not pleadaable, (Bro. Sev. Tenancy, 18. 2 Leon. 8.) yet this is to be understood, that several tenancy is not pleadable to the writ; for after a plaint in an assize, several tenancy may well be pleaded in abatement. Stepkin v. Wentworth, Dyer, 244. a. Booth, 34. 277. And several tenancy, if well pleaded and found true, abates the whole writ; and the cause assigned for this by Fincledon, Ch. J. in 41 Edw. 3. 20. b. is because the tenants cannot answer in common. Fitzherbert laid down the same rule in 27 Hen. 8. 30, and said "ceo several tenancy va in abatement de tout le breve, et si il soit tried versus le demandant donques tout son breve abatera, et rous impoimous donc judgement pour le demandant sur un male breve." Brook's Abrid. Several Tenancy, 1. The same rule is recognised in Theldall's Dig. lib. 11. ch. 31. s. 7. Nor is there a single case in the books, in which it has been argued or held that several tenancy is not a good plea in abatement to a writ of right. On the contrary, the reasons for the plea as manifestly apply to this action, as any other real action, and the ancient writers who treat on the subject evidently presuppose its legal validity; and the more modern authorities are conclusive on the point. When, therefore, the court in the above case, in allusion to the passage above quoted from Fitzherbert's Natura Brevium, (2. D.) state that "assuming at common law a writ of right patent may be brought against several tenants who hold their lands severally, and that the demandant may count against them severally, it does not, therefore, follow that this doctrine applies to a writ of right close;" it is manifest that the court have reference to the different natures of the two writs in their original state; for upon a view and after a count in a writ of right patent, if several tenements are jointly demanded of several tenants, who are jointly summoned, they may plead several tenancy in abatement of the count or lands put in view upon the writ. And as a writ of right close demands the tenements directly of the tenants, they may plead several tenancy directly to the writ, for in a præcipe quod reddat it is a good plea to the writ. Com. Dig. F. 12. Thel. Dig. lib. 5. ch. 3. s. 1. ch. 4. s. 2. 27 Hen. 8. 30. In the United States all writs of right are returnable into the common law courts of the state, and are directed to and returnable by the sheriff or other public officers. They are, therefore, writs of right close, and subject to the general doctrines of the common law applicable to such writs; and it is manifest that the doctrine of Fitzherbert, (even supposing it to be law as to writs of right patent,) cannot be admitted to control those general doctrines, or take away the right of pleading joint tenancy, sole tenancy, or several tenancy, in abatement of such writs. Writs of right, since the reign of Queen Elizabeth, have gradually become obsolete in England; or of such rare occurrence, that the learning respecting them is not as well known as it deserves to be. Indeed, a modern treatise upon the general nature and structure of real actions, and the proper pleadings and evidence in each, is a desideratum in the science of jurisprudence. may, however, respectfully refer those who may be desirous of a more thorough knowledge of the writ of right to the title Droit, in the great abridgments of Brook, Fitzherbert, Comyns, and Viner; to the learned note of Mr. Serjeant Williams, 2 Saund. Rep., 45.; to Booth on Real Actions;. We 1817. Liter V. Green An error in description is not fatal in an entry if it does not mislead It is a settled rule that where no other figure is called for in an entry, and large enough to contain the given quantity, and that the point of beginning is deemed to be the centre of the base line of such square. Chapman Austin's entry calling to run about a north course for quantity, the word “about” is to be rejected, and the land is to run a due north course, having on each side of a due north line, drawn through the centre of the base, an equal moiety. The act of Kentucky of 1797, taken in connexion with preceding acts, declaring that entries for land shall become void, if not surveyed before the first day of October, 1798, with a proviso allowing to infants and femes covert three years after their several disabilities are removed to complete surveys on their entries; it was held, that if any one or more of the joint owners be under the disability of infancy or coverture, it brings the entry within the saving of the proviso as to all the other owners. Distinction between this statute and a statute of limitations of personal actions. A call for a spring branch generally, or for a spring branch to include a marked tree at the head of such spring, is not a sufficiently specific locative call; and where farther certainty is attempted to be given by a call for course and distance, and the course is not exact, and the distance called for is a mile and a half from the place where the object is to be found, the entry is void for uncertainty. APPEAL from the circuit court for the district of Kentucky. 1817. Shipp V. Miller's heirs. This cause was argued by Mr. Talbot, for the ap- March 5th. pellant, and by Mr. Sheffey, for the appellees. Mr. Justice STORY delivered the opinion of the March 11th. This is a bill in equity brought by the appellees, who are the heirs at law and devisees of Henry Miller, deceased, to be relieved against the claims of the appellants under prior patents to a tract of land, to which the appellees assert a prior equitable title under a prior entry by their ancestor. |